By Gitahi Ngunyi
A Nairobi lawyer, Guy Elms Spenser yesterday opposed a request by Director of Public Prosecution (DPP) Noordin Haji to withdraw a case where the advocate has been charged with forging a client’s will in relation to a Sh500 million piece of land in Karen.
Instead, Spenser asked the court sitting at City Hall, Nairobi, to allow him to proceed with the case.
The forgery claims were made by Agnes Kagure (Get more about her here) who has been also been accused in a separate court with forging land documents as well as transfer deeds in a bid to grab the land in dispute.
Kagure claims the deceased sold the Karen land to her in 2011 before he died, for Sh100 million in cash.
During the hearing yesterday prosecutor Lillian Obuyo told the court that the DPP had applied for the withdrawal of the case and proposed fresh investigations into the same due to insights that prove prior investigations were inconsistent.
Essentially this means the case was filed without evidence in the first place and the DPP could find himself censored by the court for abuse of the court process if the matter proceeds to the end. Obuyo divulged as much in her submissions yesterday.
The prosecutor said that the DPP was seeking to withdraw from case to avoid abuse of the court process but that the case would be filed afresh on the strength of new evidence.
Yesterday proceedings could mark a turning point in the case particularly because it may turn public attention on the workings of the DPP’s office.
Of particular interest to the public will be how the court treats information proving that the DPP’s office had a forensic audit report from the National Land Commission on the land dispute which absolved Spenser from the allegations of forgery when it filed the suit.
Last month, Haji who had just recently been appointed to the office called in Ethics and Anti-Corruption Commission detectives to vet his officers of corruption.
It is not difficult to see why the veteran lawyer opposed the DPP’s request which gives a prosecutor a license to have a discharged person arrested outside the court that had set him free on the same day.
Lawyer Davis Osiemo for Spenser told the magistrate to process with the matter unless the withdrawal of the case was a section of the criminal procedure act that allows the magistrate to grant an accused person complete acquittal in which case it would be difficult for DPP to charge the veteran lawyer afresh based on the facts on this case.
The section that Spenser was referring to provides that a court shall dismiss a case and acquit the accused if at the close of the evidence in support of the charge by a prosecutor and the accused person, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defense.
Incidentally, DPP relied on section 87 of the criminal procedure act in his request to the court which is a double edged sword. The section allows a DPP to terminate a case against an accused person where evidence is insufficient but also provides him with headroom to charge the accused person afresh based on the facts of the withdrawn case.
The section says that a public prosecutor may with the instruction of the DPP withdraw from the prosecution of any person, and upon withdrawal. If the withdrawal is made the accused person has been called upon to make his defense, he shall be discharged.
“But discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts,” says the act.
This case has been going on since 2016 where Spenser is being accused of forging late Roger Robson signatures. Spenser was named as the executor of Robson’s Will.
Yesterday, Kagure put up a spirited fight against the DPP’s request to withdraw from the case. Kagure who spoke through her lawyer, Wandugi Karathe told the court that he had not been served with the new documents that had contributed to the DPP’s decision which include a report by the Lands Commission.
But Osiemo, clarified that the said documents had already been shared in other court proceedings.
The Magistrate granted leave to Osiemo to file an affidavit showing when the documents were shared and also set a new hearing date of July 19, 2018.